-Shruti Mishra
Introduction
Premature release entails a prisoner’s release before the completion of his judicially ordained sentence. States may grant premature release to convicts owing to several factors, as laid down in the case of Bir Singh v. State of Himachal Pradesh, which includes good conduct by the prisoner, no commission of jail offence, prisoner’s punctual return from furlough, etc. The Hon’ble Supreme Court in the recent case of Rashidul Jafar v. State of UP & Anr. has asserted that after the completion of fourteen years, a convict may be considered by the respective High Court of the state to be prematurely released, aside from release on bail. Remission is one such way through which such a release may be effectuated.
A state government has the power under Section 59(5) of the Prisons Act, 1894, to take the necessary steps to amend the provisions of the Remission Rules at an earlier date, as laid down in the case of State of Haryana v. Mahender Singh. In the exercise of such provision, the Bihar government recently amended its prison manual to change Rule 481, thereby removing the clause that prohibits the release of any person convicted of killing a public servant on duty. This facilitated the premature release of over 20 convicts, including Anand Mohan, who was awarded life imprisonment by the Patna High Court for the murder of District Magistrate G. Krishnaiah. Mohan was released after serving 14 years of imprisonment.
According to Bihar’s remission policy, such convicts were not eligible for premature release until they had completed a minimum of twenty years of their life sentence. This also came in succession to the release of 11 convicts guilty of the murder of Bilkis Bano, a clear subversion of justice by politics.
Who has the Authority to grant Remission?
The Apex Court relied on the case of Gopal Vinayak Godse v. State of Maharashtra and held that the power to grant remission is solely the domain of the appropriate government. Sections 432 and 433 of the CrPC clarify that ‘appropriate government’ refers to the central government in cases where a sentence has been passed for an offence relating to the executive power of the union and the state government in other cases, such as when the offence is against any law relating to a matter to which the executive power of the state extends. Additionally, the Supreme Court in the case of Union of India v. Sriharan & ors. held that to ascertain which government would be the appropriate government, the sentence imposed under the CrPC or any other law needs to be seen.
The Mohd. Munna Case further laid down that the Prisons’ Rules are made under the Prisons Act, which by itself does not confer any authority to commute or remit a sentence. However, constitutionally, Articles 72 and 161 empower the President and the Governor of the State, respectively, to grant remission, suspension, or commutation of the sentence to a convict. Further, the Laxman Naskar Case laid down that a life convict is not necessarily entitled to be released prematurely, but if the government frames any schemes or rules for early release of such convicts, they will be treated as guidelines for exercising its power under Article 161 of the Constitution.
The extent of the power to grant remission by the President and the Governor is absolute and cannot be fettered by virtue of any statutory provision, as held in the Maru Ram Case. It was further held that in the exercise of such powers, the President acts on the advice of the Council of Ministers and the Governor acts on the advice of the State Government.
Decoding the Unconstitutionality Behind Premature Release
In the Satish Kumar Case, the Patna High Court held that the government may make a reasonable classification based on intelligible differentia between the same class of prisoners for the purpose of granting remission. Such differentia is not based on a ‘yardstick,’ but on the basis of each circumstance, thereby making it discretionary. The discretionary power of the executive vis-à-vis granting of remission in itself is not unconstitutional but becomes so if such exercise is undertaken arbitrarily.
The reasons for said unconstitutionality in both the Anand Mohan and Bilkis Bano cases begin with the disregard given to the factors relevant to determining premature release, the most important of them being the gravity of the offense. The possibility of reformation by itself does not tip the scales enough to undermine the gravity of the crime committed, as against what was held in the Bir Singh Case. In reference to this, the Supreme Court has sought original records to ascertain what consideration the decision to alter the policy is based on. This could be because the prima facie reason for the same appears to be a political one, as was apparent in the speech given by Chief Minister Nitish Kumar, whereby he assured the public that he ‘was working on bringing about the release of Mohan.’ Further, an additional link between all convicts who have been released remains their affiliation to minority caste groups in Bihar, and such a move could potentially aid the present government with vote bank politics.
The constitutional protection of personal liberty should not be exercised in an arbitrary manner with respect to considering applications for premature release. Amendment of remission policies to favour a few in lieu of preferring applications for remission put forth by others remains arbitrary. It becomes the prerogative of the respective District Legal Services Authorities to ensure that the policy benefits all eligible prisoners equally.
The Possibility for Retrospective Application of Remission Policy
In State of Haryana v. Jagdish, the Apex Court had held that the premature release plea had to be considered on the basis of the policy as it stood on the day the accused was convicted by the Trial Court. In both the Anand Mohan and Bilkis Bano cases, the policy as it stood on the day of conviction made remission unconstitutional.
In the former case, the policy with respect to remission as it stood on the day of Mohan’s conviction would have made him ineligible to be released without serving the mandated twenty years of life imprisonment. However, the amended policy made him eligible to be prematurely released, which is in clear contravention of the State of Haryana v. Jagdish case. With regards to the Bilkis Bano Case, all eleven convicts derived the benefit of the retrospective application of the amended Remission Policy, which brings various issues to the forefront with respect to the criteria for consideration of premature release.
The Prospect of Judicial Intervention
The Constitution as well as the CrPC clearly lay down that the remission procedure is entirely the prerogative of the executive. This is evident in how the petitions for premature release in the Anand Mohan and Bilkis Bano cases were bypassed when the Bihar and Gujarat governments, respectively, made the requisite policy changes to facilitate the release of the convicts.
The Supreme Court in the case of Epuru Sudhakar & Anr. v. Govt. of A.P. extensively dealt with the grounds for the judiciary to intervene in the remission procedure. It was held that since the prerogative powers of granting pardon, remission, or commutation are discretionary, there is always the potential for them to be abused. Such a process should therefore not technically be immune to judicial review.
Further, in the Maru Ram Case, it was held that consideration for political loyalty is irrelevant and fraught with discrimination and is therefore the epitome of constitutional power being used arbitrarily. The doctrine of separation of powers would essentially entail that the powers concerning remission are not open to judicial scrutiny, but the Supreme Court ruled otherwise and held that such a power can be examined by way of judicial review.
Swaran Singh v. State of UP clearly laid down that political factors cannot be reasons for altering policies such as those concerning remission, and the judiciary must rightfully correct the disregard for constitutionalism. As laid down in Tata Cellular v. Union of India, the essential feature of the judiciary in such circumstances is to confine itself to the question of legality and consider whether the executive committed an abuse of its power, operated in an error of law, or transgressed the rules of natural justice. The prerogative powers should therefore not automatically be assumed to be non-justiciable and should be used to keep the government in check from being in unconstitutional excess.
Conclusion
The issue of premature release in the Indian criminal justice system raises significant concerns regarding constitutional validity and adherence to principles of justice. Recent cases highlight the problematic aspects of political interference and arbitrary decision-making in granting remission. The discretionary power of the executive in granting remission is not inherently unconstitutional, but it becomes so when exercised arbitrarily and without considering the gravity of the offense committed. The retrospective application of amended remission policies also raises questions about the consistency and fairness of the process.
While the Constitution and the CrPC grant the executive the authority to grant remission, the possibility of judicial intervention cannot be completely ruled out. Judicial review becomes relevant when the exercise of such powers is mala fide, based on political considerations, or conducted without due application of mind. The judiciary, therefore, has to have a stronger role to play in ensuring that remission decisions are made in accordance with constitutional principles, devoid of discrimination, and based on the rule of law.
This blog was authored by Shruti Mishra who is a fourth-year student of law at Vivekananda Institute of Professional Studies, Delhi.
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